Legislation that Gives "Fairness" a Bad Name
Statement of the American Immigration Lawyers Association

The American Immigration Lawyers Association (AILA) strongly opposes the Fairness in Immigration Litigation Act (FILA), legislation introduced yesterday in the Senate by Senators Hatch (R-UT), Kyl (R-AZ), Cornyn (R-TX), Chambliss (R-GA), and Sessions (R-AL). This measure continues the radical restrictions on due process for non-citizens first propounded in the 1996 immigration laws and exacerbated by the 2002 Board of Immigration Appeals (BIA) "reforms." There is much at stake here, not only the rights, well-being and very lives of immigrants, but also our nation's rich tradition of allowing people their day in court.

FILA's authors maintain that their bill "restores fairness and integrity to the system" and seeks merely to level the playing field between foreign born nationals who have been convicted of crimes and those who have not. Such a leveling is needed, they allege, because non-citizens with criminal convictions currently possess more opportunities for judicial review than do other non-citizens. This view is incorrect: it is based on their core premise that those with criminal convictions now can obtain habeas corpus review in the Federal District Courts and can appeal any adverse decision to the Federal Courts of Appeal, while others may only challenge their removal in the Federal Courts of Appeal. Two facts underscore the fundamental flaw of their position: (1) the scope of issues that can be reviewed in a habeas claim are significantly more limited than those that can be heard on direct review, so even though two courts may consider the claim, the extent of such review is more narrow; and (2) Congress in 1996 already had barred federal appellate review for "criminal aliens," which is precisely why these foreign born have been forced to seek review via habeas petitions. Thus, their claim that this bill would create equal access to the courts is plainly without merit. Instead, what this bill would do is preclude all review for these non-citizens.

The bill's authors also justify FILA as the necessary tool to stem a rising tide of immigration-related habeas corpus claims filed in the federal courts since 1996. In fact, the 1996 immigration laws caused the escalating rate of habeas claims. As noted above, these laws stripped federal courts of jurisdiction over challenges to deportation orders raised by non-citizens convicted of certain crimes. To make matters worse, the 1996 laws also greatly expanded the definition of "aggravated felony," a term of art in immigration law that encompasses a wide range of disparate conduct, including minor non-violent infractions. Moreover, this expansion was made retroactive, thus changing the rules in the middle of the game so that people could be deported for crimes that were not deportable offenses when they were committed. The expanded aggravated felony definition carries harsh consequences, including mandatory detention with no possibility of release. These provisions led to a pronounced surge in the detentions of non-citizens precluded from normal avenues of judicial review, with many of those detained long-term permanent residents convicted in the past of minor violations. The burgeoning detentions, in turn, led to the marked increase in petitions for habeas corpus review. The sponsors of the bill would have us believe that their proposed restrictions on habeas are necessary to deal with this surge. What is really needed is reforming the 1996 laws that created this situation in the first place.

The unjust results of the post-'96 statutory framework were exacerbated by the 2002 "reforms" of the Board of Immigration Appeals (BIA) undertaken by Attorney General Ashcroft. These "reforms" have undermined the ability of the BIA to fulfill its role as the watchdog of the immigration courts, and have led to a massive increase in appeals to the federal courts from BIA decisions. The so-called reforms include: broad expansion of single-member review as opposed to the traditional three-Member panel review; huge increase in cases decided without any written opinion; elimination of de novo review; unreasonable time limits within which cases must be reviewed; and reduction in the number of board members. Congress should use its authority to reverse the Department of Justice "reforms" if they truly want to reduce federal courts' immigration case loads.

The comments of FILA's authors mask this legislation's much more ambitious agenda: restricting habeas review for all non-citizens, not only those convicted of crimes. For example, asylum applicants who find themselves statutorily barred from seeking review in the federal courts of appeal would be prohibited under FILA from petitioning for habeas review. FILA would undermine, not enhance, fairness in immigration litigation. Indeed, if enacted, this bill would lead us further astray from the due process protections that lie at the core of our nation's identity. Instead of reinforcing bad laws and practices that violate our due process traditions, we would hope that Members of Congress would focus on making sure that our laws and judicial system work and work well, and reflect our core values of due process and a day in court.

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Founded in 1946, AILA is a nonpartisan, nonprofit organization that provides its Members with continuing legal education, information, and professional services. AILA advocates before Congress and the Administration and provides liaison with the DHS and other government agencies. AILA is an Affiliated Organization of the American Bar Association.